“ Was and is the IPA exercising public powers or functions either (i) when it accepted the Bonds; (ii) when it holds the rights under the Bonds; (iii) when considering assigning the Claim Rights (insofar as it does consider doing so); or (iv) (if and insofar as it can or does exercise Claim Rights) when exercising Claim Rights under the Bonds?”
“Pursuant to the Insolvency Act 1986 the [SOS] is empowered to recognise certain professional bodies (known as the Recognised Professional Bodies) for the purpose of authorising suitable individuals to act as insolvency practitioners. To underpin the insolvency regime the [SOS] has agreed a set of principles with those bodies for the purposes of achieving consistency in the authorisation and regulation of insolvency practitioners. The [SOS] when exercising authorisation functions as the Competent Authority will abide by these principles. Each body is monitored by the [SOS] for adherence to these principles …”
“First there is no universal test of when a decision will have a sufficient public law element to make it amenable to judicial review. It is a question of degree. Secondly, in deciding whether a particular impugned decision is amenable to judicial review, the court must have regard not only to the nature, context and consequences of the decision, but also to the grounds on which the decision is challenged…… Thirdly the fact that the decision is made by a public body exercising a statutory power will not in itself be a conclusive indication that there is a sufficient public law element; a government body may negotiate commercial contracts without inevitably becoming subject to judicial review. Fourthly, and conversely, the fact that the challenged decision relates to payments to be made by a public authority pursuant to a contract will not in itself be a conclusive indication that there is no sufficient public law element. Fifthly, it will be necessary to consider whether the challenged decision is one which is necessarily involved in the performance of a public function, or is merely incidental or supplementary to a public function. Sixthly, if the decision does not have a sufficient public law element to make it amenable to judicial review, the fact that the aggrieved party has no other avenue of appeal is not a reason for treating the decision as if it were a public law decision.”
“ Was and is the IPA exercising public powers or functions either (i) when it accepted the Bonds; (ii) when it holds the rights under the Bonds; (iii) when considering assigning the Claim Rights (insofar as it does consider doing so), or (iv) (if and insofar as it can or does exercise Claim Rights) when exercising Claim Rights under the Bonds?”
“The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision maker. In identifying the classes of case in which judicial review is available, the courts place considerable importance on the source of legal authority exercised by the defendant public authority. Second, and additionally, where the “source of power” approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This enables the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self-regulatory organisations)…”
“dealing with statutory bonding requirements for their IP members under S 390(3) and operating mechanisms to ensure that potential claims arising from the fraud or dishonesty of their members are appropriately identified and made”
“potential claims arising from the fraud or dishonesty of their members are appropriately identified and made”
“dealing with statutory bonding requirements for their IP members under S 390(3) and operating mechanisms to ensure that potential claims arising from the fraud or dishonesty of their members are appropriately identified and made”
“in matters of political controversy, that every television programme provided due impartiality”
“The jurisdiction of the High Court… to supervise the exercise of their jurisdiction by inferior tribunals has not in the past been dependent upon the source of the tribunals authority to decide issues submitted to its determination, except where such authority is derived solely from agreement of parties to the determination. The latter case falls within the field of private contract and thus within the ordinary civil jurisdiction of the High Court...”
“(i) a term will not be implied unless, on an objective assessment of the terms of the contract, it is necessary to give business efficacy to the contract and/or on the basis of the obviousness test; (ii) the business efficacy and obviousness tests are alternative tests. However, it will be a rare (or unusual) case where one, but not the other, is satisfied; (iii) the business efficacy test will only be satisfied if, without the term, the contract would lack commercial or practical coherence. Its application involves a value judgment; (iv) the obviousness test will only be met when the implied term is so obvious that it goes without saying. It needs to be obvious not only that a term is to be implied, but precisely what that term (which must be capable of clear expression) is. It is vital to formulate the question to be posed by the officious bystander with the utmost care; (v) a term will not be implied if it is inconsistent with an express term of the contract; (vi) the implication of a term is not critically dependent on proof of an actual intention of the parties. If one is approaching the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time; (vii) the question is to be assessed at the time that the contract was made: it is wrong to approach the question with the benefit of hindsight in the light of the particular issue that has in fact arisen. Nor is it enough to show that, had the parties forseen the eventuality which in fact occurred, they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred; (viii) the equity of a suggested implied term is an essential but not sufficient pre-condition for inclusion. A term should not be implied into a detailed commercial contract merely because it appears fair or merely because the court considers the party would have agreed it if it had been suggested to them. The test is one of necessity, not reasonableness. This is a stringent test.”
“The Insolvency Act has, in section 436, a wide definition of “property” which expressly includes things in action. Nevertheless it seems to me that section 234 must be dealing with tangible property only. I do not see how one can seize an intangible; nor do I see how one can dispose of an intangible in such a manner as to cause loss or damage to the owner.”
“The receivers also drew attention tosection 234(3) of the Insolvency Act 1986 . This provision protects administrative receivers and liquidators, in the absence of negligence, from liability if they seize or dispose of property which is not the property of the company. “Property” includes things in action: section 436. In [Welsh Development Agency] the Court of Appeal held that “property” in section 234(3) does not include intangibles because they cannot be “seized”
“At the outset, it is important to appreciate that section 234 does not create new rights but is designed as a summary procedure to assist an insolvency office-holder to carry out his functions in the relevant insolvency process. The office-holder can obtain an order in his own name for transfer of the company’s property to himself, but the section does not give the office-holder any better rights to the property than the company had”
“Where any person has in his possession or control any property…. to which the company appears to be entitled, the court may require that person forthwith…. to pay, deliver, convey, surrender or transfer that property…. to the office holder”